The Coming Attack on an Essential Element of Women’s Freedom
No-fault divorce has improved the lives of millions. Now some extreme Republicans want to abandon it.
For the past half century, many women in America have enjoyed an unprecedented degree of freedom and legal protection, not because of Roe v. Wade or antidiscrimination laws but because of something much less celebrated: “no fault” divorce. Beginning in the early 1970s, no-fault divorce enabled millions of people, most of them women, to file for divorce over “irreconcilable differences” or the equivalent without having to prove misconduct by a spouse—such as adultery, domestic violence, bigamy, cruelty, abandonment, or impotence.
But now conservative politicians in states such as Texas and Louisiana, as well as a devoutly Catholic husband who tried to halt his wife’s divorce efforts in Nebraska, are attacking no-fault divorce. One of the more alarming steps taken in that direction came from the Texas Republican Party, whose 2022 platform called on the legislature to “rescind unilateral no-fault divorce laws and support covenant marriage.” Given the Republican Party’s control of the offices of governor, secretary of state, and attorney general, and both chambers of the state legislature, Texas has a chance of actually doing it.
Until 1857, divorce in England—whose ecclesiastical laws formed the basis of divorce laws in most American colonies outside New England—was available only through an act of Parliament. A total of 324 couples managed to secure one; only four of those were initiated by women. Husbands could divorce their wives based solely on adultery, but women had to prove additional aggravating circumstances. Proof of brutality, rape, or desertion was considered insufficient to support a divorce. Not until 1801 did a woman, Jane Addison, finally win a divorce based on adultery alone.
Divorce in the American colonies was often decided by governors, while colonial courts required the innocent spouse to prove marital fault by the other, making divorce virtually nonexistent. Married women were mostly bound by laws of “coverture,” which, in the words of the English jurist William Blackstone, meant that “by marriage, the husband and wife are one person in the law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing.” As recounted by the historian Catherine Allgor, American women had no right to enter into contracts or independently own property, including their own wages and “the clothes on their backs.” Mothers lacked basic parental rights, too, “so that if a wife divorced or left a husband, she would not see her children again.”
State standards for divorce varied, including the number of times a man could assault his wife before divorce was allowed. (Marital rape was not illegal in all 50 states until 1993.) In 1861, a judge in New York City ruled that “one or two acts of cruel treatment” were not sufficient grounds to grant a woman a divorce, even after her husband beat her unconscious with a piece of wood during a fight over the family dog sleeping in their bed. The judge wrote that “the wife should not seek on slight provocation to dissolve that sacred tie which binds her to her husband for life, for better or worse.” As if the privacy intrusions of a trial were not enough, newspapers routinely publicized divorce cases, often blaming the woman without mentioning her abuse. Norms of “regular marriage” even made their way into national politics when, two months before the Civil War began, President Abraham Lincoln invoked the analogy in a speech accusing the South of wanting a “‘free love’ arrangement” based on “passional attraction” rather than fidelity to the Union.
Against this backdrop, conservative commentators today claim that no-fault-divorce laws destroy the sanctity of marriage and disfavor men. The blogger and Daily Wire host Matt Walsh tweeted this year that no-fault divorce should be abolished. He once tweeted that “no fault divorce grants one person the ability to break the contract without the consent of the other. What kind of contract is that?” The right-wing YouTube personality Steven Crowder has argued that “no-fault divorce … means that in many of these states if a woman cheats on you, she leaves, she takes half. So it’s not no-fault, it’s the fault of the man.” Elsewhere, he claimed, “If you’re a woman that comes from meager means, and you want to get wealthy—you’ve never worked, you didn’t get a degree, you have no skill set, but you’re good-looking—your best path to victory is simply to marry a man, leave him, and take half.”
Republican Senator J. D. Vance of Ohio picked up the argument on the campaign trail last September, stating, “One of the great tricks that I think the sexual revolution pulled on the American populace … is the idea that, like, ‘Well, okay, these marriages were fundamentally, you know, they were maybe even violent, but certainly they were unhappy. And so getting rid of them and making it easier for people to shift spouses like they change their underwear, that’s going to make people happier in the long term.’”
Except no-fault-divorce laws did make women happier. Prior to California’s Family Law Act of 1969, which was signed into law by then-Governor Ronald Reagan, all states followed a fault-based system in which divorces were granted very sparingly under strict criteria. Women who wanted out of a bad marriage had little choice but to stay, because most were family caregivers who would wind up destitute without a judicial division of assets. The tight legal controls also led to highly adversarial proceedings and regularized lying in order to secure a divorce decree. Estranged couples fled to more liberal states known as “divorce colonies” simply to end a marriage. It was not until 1949 that divorce was legal at all in South Carolina. Although many states still retain the option of fault-based grounds for divorce, which arguably can carry the benefits of avoiding mandatory separation periods and a greater share of marital assets for the spouse who files for divorce, the last to abandon mandatory proof of fault was New York, in 2010. Late-stage opponents responsible for New York’s delay in the movement included the Roman Catholic Church and some women’s-rights groups fearful that no-fault divorce would diminish women’s leverage to obtain favorable alimony or child-support awards.
No-fault divorce managed to meaningfully shift the power balance in marriage relationships: Women now had the option of leaving without their husband’s permission. From 1976 to 1985, states that adopted no-fault divorce saw their overall domestic-violence rates plummet by a quarter to one-half, including in relationships that did not end in divorce. The number of women murdered by “intimates” declined by 10 percent. Female suicide rates also fell immediately in states that moved to unilateral divorce, a downward trend that continued for the next decade. Researchers have theorized that many women “derive a life-preserving benefit from divorce,” because under the threat of divorce, “the husband … behaves himself, thereby reducing the incidence of domestic violence and spousal homicide.”
Federal law allows for state legislatures to easily roll back women’s ability to initiate divorce without spousal consent or proof of abuse. Although the Supreme Court recognized in 2015’s Obergefell v. Hodges that state laws must yield to federal rights protecting same-sex marriage, nothing in the Constitution or the Court’s precedent clearly prevents states from reversing no-fault divorce.
The writer and attorney Beverly Willett, an opponent of no-fault divorce, has argued that “unilateral no-fault divorce clearly violates the 14th Amendment,” supposedly depriving defendants in divorce cases “of life, liberty, and property without due process of law.” This argument has it exactly backwards. There is no express “right” to marriage in the Constitution. Although troubling vestiges of legal coverture still linger in American law, women these days are not considered legal “property” to which a man’s constitutional due-process rights could conceivably attach.
As for due-process protections for liberty (which the Supreme Court has described as “not confined to mere freedom from bodily restraint,” but instead inclusive of “the full range of conduct which the individual is free to pursue”), that right more compellingly protects the person seeking to end a marriage—and to do so without having to prove to the government that she deserves it.